Welcome to 2013. The Ohio Supreme Court is set to start anew, with no backlog of submitted cases, and three fresh faces—Justices French, Kennedy and O’Neill. That’s quite a turnover. Justice O’Neill has recused himself from the very first case, State v. Noling. When O’Neill was on the Eleventh District Court of Appeals he sat on an early round of this case, affirming the trial court’s decision dismissing Noling’s first petition for post conviction relief. O’Neill will be replaced on this appeal by Tenth District Court of Appeals Judge William A. Klatt—until a few days ago, a colleague of then Judge, now Justice Judith French.

The Noling Case, Part I

On January 8, 2013 the Supreme Court of Ohio will hear oral argument in the case of State v. Tyrone Noling, 2011-0778. We at the University of Cincinnati College of Law are proud that Carrie Wood, an attorney with U.C.’s Ohio Innocence Project, will be arguing the case on behalf of Tyrone Noling. The issue in this case is whether an application for post conviction DNA testing filed under an earlier statute with acceptance criteria that have been subsequently legislatively amended prevents a trial court from reviewing a later DNA testing application filed under the new statute with new acceptance criteria.

Tyrone Noling was indicted in 1995 for the 1990 murder of Bearnhardt and Cora Hartig. Noling was charged with murdering the elderly Hartigs during the commission of a robbery. Three others were involved in this crime. Noling was found guilty on all counts and sentenced to death in 1996. Noling’s numerous attempts to seek postconviction relief in state and federal courts failed.

Noling’s Applications for Post Conviction DNA Testing

In 2008, Noling applied for DNA testing under S.B. 262, Ohio’s previous statute (effective July 11, 2006) allowing for post-conviction DNA testing. The application was denied under R.C. 2953.74(A), which required the court to reject an application for DNA testing if there was a “prior definitive DNA test” on the same material the inmate sought to have tested. The Court found that Noling had had a definitive DNA test in 1993 (albeit not pursuant to the DNA statutes now at issue), which had ruled out his DNA from a cigarette butt found in the driveway of the victims’ house.

The earlier versions of the post conviction testing statutes provided no definition for the phrase “definitive DNA test.” In 2010, in State v. Prade, the Supreme Court supplied a definition, holding that that a prior DNA test is not “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.

In 2010, the Ohio General Assembly enacted S.B. 77, which went into effect July 6, 2010. The new law, known colloqually as the Innocence Protection Act, changed the acceptance criteria for post-conviction DNA testing, and provided a definition for the phrase “definitive DNA test” that had been absent from the prior versions of the DNA testing statute. That definition is codified at R.C. 2953. 71(u) and is similar to the definition supplied by the Court in Prade. Under that section, “a prior DNA test is not definitive if the eligible offender proves by a preponderance of the evidence that because of advances in DNA technology there is a possibility of discovering new biological material from the perpetrator that the prior DNA test may have failed to discover.”

In December 2010, after the acceptance criteria had been changed by S.B. 77, Noling reapplied for DNA testing based on the existence of new acceptance criteria and the fact that new information regarding a possible alternative suspect had come to light. The trial court denied the second application, holding that the rejection of the first application barred the court from considering Noling’s second application.

Noling’s Argument

On appeal to the Supreme Court of Ohio, Noling argues that the trial court’s denial of the second application was based on an overly rigid reading of R.C. 2953.72(A)(7) and goes against canons of statutory interpretation and construction, mainly by failing to consider other related sections of the Revised Code in interpreting the statute. He also argues that the trial court ignored the General Assembly’s new acceptance criteria set forth in R.C. 2953.74(A) and 2953.71(U). Ignoring the new criteria bars potentially innocent inmates from having a reapplication considered under the acceptance criteria intended by the Legislature. Noling’s brief cites the cases of Robert McClendon and Raymond Towler, two inmates who were exonerated by DNA testing after filing a second application based on the new acceptance criteria. Finally, Noling argues that the trial court’s denial of the application conflicts with the DNA testing statute’s fundamental purpose.

Noling argues that the new definition of what constitutes a prior “definitive DNA test” is crucial as new advancements in DNA technology increase the ability of DNA tests to identify perpetrators and exclude other suspects. The new definition states that a prior test is not “definitive” if new technology creates a possibility of discovering new biological material from the perpetrator that the prior test may have failed to discover. Because of this definition, Noling argues that a second application for DNA testing cannot be procedurally barred if new technology has come into existence after the first application that creates a possibility that new biological material from the perpetrator might be found.

State’s Argument

In response, the State of Ohio argues that when an eligible offender’s application for DNA testing has been rejected for failing to satisfy the acceptance criteria described in R.C. 2953.72(A)(4), the trial court is without statutory authority to accept or consider subsequent applications. The State argues that Noling is essentially challenging the soundness of legislative policy—raising a separation of powers issue. The state also argues that new testing of the cigarette butt– found outside the Hartigs’ home, not at the crime scene, which was in the kitchen—would not be outcome determinative (another element that the applicant must prove to be eligible for DNA testing), because there is not enough circumstantial evidence suggesting that the cigarette butt was actually left by the perpetrator of the crime rather than some other member of the public. Finally, the State argues that Noling is improperly trying to extend the Court’s holding in Prade. Unlike the original DNA test in Prade, which provided no information about the killer from the bite mark left on the victim’s arm through her blouse and lab coat, Noling’s 1993 DNA test definitively ruled him out as the person who smoked the cigarette found in the driveway.

Noling’s proposed proposition of law

When a prior application for post-conviction DNA testing is rejected under the old acceptance criteria, an application for post-conviction DNA testing filed under the Legislature’s new acceptance criteria must be considered rather than procedurally barred by R.C. § 2953.72(A).

State’s proposed counter-proposition of law

When an eligible offender’s application for DNA testing has been rejected for failing to satisfy the acceptance criteria described in R.C. 2953.72(A)(4), the trial court is without statutory authority to accept or consider subsequent applications. R.C. 2953.74(A)(7).

Then the Court Requested Supplemental Briefing

After the court had accepted jurisdiction in the case, it requested supplemental briefing on this issue:

“In view of State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, whether R.C. 2953.73(E)(1), which confers jurisdiction on this court to consider Noling’s appeal, is constitutional.” The blog will address this part of the case in a subsequent post later this week.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.